Right now, the Penobscot Indian Nation is fighting to retain control of the river that is the heart of its reservation. Penobscots have been forced to go to federal court because the state of Maine contests their right to regulate fishing and other activities along the river.

Since 1818, the heart of the Nation’s reservation has been the islands in the river north from Indian Island, their town 15 miles upriver from Bangor. Although the state supports the tribe’s right to regulate fishing activities of people on Penobscot lands, Attorney General Janet Mills is contending that the state has exclusive authority to regulate activities in the river itself.

The problem with this claim is that a number of laws and treaties dating back to 1796 support the Penobscots’ claims to the river that bears their name.

The stakes in this case are big.

Whoever regulates fishing in the river also has a say in the quality of the water those fish inhabit. Consequently, whoever wins this case will likely influence the crafting of pollution permits for towns and paper mills as well as building permits for any new east-west highways or other projects that cross this stretch of river.

For residents of the Androscoggin River valley or other valleys in Western Maine, the story has familiar elements. Downriver communities regularly disagree with their upriver neighbors about the best industrial and recreational uses for the river they share. But the Penobscot River dispute is much more complicated because the Penobscots have a legal and a cultural connection to their river that is much stronger than the ties of any of their neighbors.

Penobscot Chief Kirk Francis explains the Penobscots’ case succinctly: “This river is simply who we are. It’s the very core of our identity as a people and it’s simply the most important thing in the Penobscot Nation’s life.” In other words, for the Penobscots, losing this case would threaten the survival of their culture.

The roots of this dispute lie most directly in the Maine Indian Land Claims Settlement Acts of 1980.

Two laws, one passed by the federal government and the other passed by the state of Maine, presumed to resolve a complex land dispute between the state on the one hand and the Penobscots, the Passamaquoddies, and the Maliseets on the other. Although the tribes won important financial compensation for their lost lands, the state believed the law gave it significant authority over the tribes. All three tribes have contested this interpretation, but as one of the lawyers for the state put it a number of years later, “A deal is a deal.”

But what, exactly, is the deal?

The Maine Indian Claim Settlement Act of 1980 that was passed by the state defines the Penobscot Reservation as including the islands in the Penobscot River north of and including Indian Island, but it also affirms the Penobscots’ rights to sustenance fishing within their territories.

The state claims that Penobscot fishing rights do not extend to the river because the river was not included in the Penobscots’ territory. To accept this claim, though, is to effectively deny Penobscots any sustenance fishing rights.

Quite simply, there is no fishing on the islands themselves “unless,” as one Penobscot has put it to me, “you like fishing for pine cones.”

Penobscots secured their fishing rights in 1980 because they sustain themselves and their culture from the resources of the river. Chief Francis is one of a long line of Penobscots who have affirmed this relationship. People have been living and fishing on Indian Island for at least 4,000 years. Penobscots’ stories describe how their culture hero Gluskabe created the river and turned some of the Penobscots’ ancestors into its fish.

Retaining this ancient relationship has not been easy. Penobscots fought to retain this connection to the river in countless negotiations, first with the state of Massachusetts when it controlled this region, and then, after 1820, with the new state of Maine.

When they sold lands to Massachusetts in 1796, Penobscots retained lands around the river. Eleven years later they explained why: “The God of Nature gave them their fishery, and no man without their consent has a right to take it from them.”

Despite these clear claims, Massachusetts officials often ignored Penobscot rights, and whites sometimes killed Penobscots who dared to fish in the river. Even when the Treaty of 1818 sold more lands to Massachusetts, the Penobscots retained the islands and their claims to the river itself. Non-Penobscots gained the right of passage on the river but not possession of its waters. In 1831, Penobscot chiefs John Attean and John Neptune proposed fines for whites who fished off of Penobscot islands.

Unfortunately, Massachusetts and Maine officials ignored Penobscot claims, but the Penobscots still fished. Even now, when industrial toxins in the river make fish dangerous to eat, Penobscots continue to fish. They do so because it is part of their livelihoods and, more important, it is how they maintain connections to their past and to their home.

It should not be surprising, then, that in 1988 Maine’s Attorney General James Tierney affirmed Penobscot sustenance rights when he wrote that Penobscots had the authority to regulate fishing “in the Penobscot River within the boundaries of the Penobscot Reservation.”

Why does our current Attorney General, Janet Mills, disagree?

Unfortunately, Mills has offered no explanation, but I hope she realizes that history and law speak strongly for the Penobscots. The state needs to uphold “the deal” that is the Maine Indian Claims Settlement Act. But this is about more than a deal. The Penobscots are fighting for their culture, trying to retain control over the river that has sustained them for centuries.

Mainers should ask the Attorney General’s office to reconsider this attack on the Penobscots. If the state and the Nation have their differences, they would do well to talk about them together, not in the charged (and costly) venue of the courtroom.

Joseph Hall is an associate professor in the Department of History at Bates College in Lewiston.

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